50 Mass. App. Ct. 253

February 10, 2000 - October 19, 2000

Plymouth County

Present: JACOBS, RAPOZA, & GELINAS, JJ.

At a criminal trial of codefendants on indictments charging unlawful
possession of guns and ammunition, the evidence was insufficient to
demonstrate that any defendant actually or constructively possessed
the contraband or engaged in a joint venture to do so; the trial
judge should have allowed the defendants' motions for required findings
of not guilty. [256-259]

Complaints received and sworn to in the Plymouth Division of the District Court Department on March 14, 1996.

The case was tried before Daniel B. Winslow, J.

Lisa Siegel Belanger for Anthony T. Goodwin.

John Jr. Holmgren for Marcus Hurd.

Paul C. Brennan for Rayshaun J. Brown.

William McCauley, Assistant District Attorney, for the Commonwealth.

JACOBS, J. Tried to a District Court jury, each of the defendants was convicted of
four charges [Note 2] based on possession of guns and ammunition. The
defendants appeal from the ensuing judgments. We reverse.

Page 254

1. The evidence. At about 11 P.M. on March 13, 1996, Brockton police
received three 911 telephone calls from individuals who reported hearing
gunshots in their neighborhood. The first caller reported hearing arguing
and shooting outside her home. The second caller reported hearing five
or six shots fired, going to a window, and seeing three black men wearing
"hoodies" running through a parking lot across the street from her, then
running around the rear of a nearby house, emerging at the front, and
entering the front door. Moments after this call the police received a
third call from a woman who also reported hearing the shots and, while
she was on line with the 911 operator, stated she heard someone banging
on the door of the apartment next to her, which the police determined was
located in the house referred to by the second caller.

In addition to several police officers who responded to the telephone
calls, only the second caller testified at trial. Her testimony differed
somewhat from her 911 call [Note 3]. She testified that she heard one
gunshot different from the rest, and then several consecutive shots. She
described the three men she saw from the window of her apartment as young
black men, one "fairly light," all about five feet, eight inches tall,
and about the same size. She further testified these men were wearing
dark jeans, and that she saw one, and possibly two of them with hoods.
She stated they were running fast, one with his hands down and the other
two "like they were hugging themselves." This witness was not able to
describe them further, and did not make an in- court identification.

The second caller also testified that, after first calling the police,
she went back to the window. She saw two men come out of the house she
had previously described, then go to an area at the side of that house
where a dumpster and shed were located, remain there for about half a
minute, then run back into

Page 255

the house through the front door. She described them as about five feet,
eight or nine inches tall, wearing dark clothes, sweatshirts and jeans,
one of them wearing a hood. She saw both of them standing two or three
feet away from the dumpster, was unable to see whether they had anything
in their hands, and did not see anything thrown into the dumpster. She
briefly lost sight of one of them when he went to the area of the shed.
She stated that there was "nothing different" about these two men from
the three she had earlier observed going into the house.

After the police arrived, they entered the house and knocked on the
front door of the apartment to which the third caller had referred. The
police identified themselves, but obtained no response, although they
could hear movement inside. Other police, stationed at the rear
entrance, saw a woman with a young child hurriedly walk out of the rear
door. There was evidence that this woman occupied the apartment and that
her name was on the mailbox. Upon entering the living room of the
apartment, the police found the defendants Brown and Hurd sitting on a
couch, slouched down, and another man, Edward Vasquez, on a second
couch, and the defendant Goodwin kneeling or sitting on the floor between
the couches. [Note 4] The collective testimony of the police officers may be
viewed as establishing that, when they encountered the three defendants,
they were wearing dark clothing and sweatshirts or jackets with hoods.
The officers also described Hurd as six feet or six feet, one inch tall;
Brown about five feet, ten or eleven inches, Goodwin about five feet,
seven or eight inches, and Vasquez as Hispanic and five feet, six or
seven inches tall.

After ordering the men to lie down on the floor, the police searched
the living room, and found a loaded 9 millimeter handgun under the couch
where the defendants Hurd and Brown had been sitting. Searching outside
the house, the police found a loaded, sawed-off shotgun in the dumpster
and an unloaded .25 caliber handgun in the shed. There was evidence that
three spent cartridges found nearby in the street had been fired from the
.25 caliber handgun.

2. Discussion. The Commonwealth proceeded with two theories at trial.
First, that each defendant could be found guilty of possession of one or
more of the firearms as a joint venturer;

Page 256

and second, that each defendant also could be found guilty of constructive,
if not actual, possession of a single firearm, even though there was no
direct evidence connecting any one of the three defendants to any specific
firearm seized. The judge essentially gave established instructions on
possession, actual and constructive, and joint venture. Because the
"theories of constructive possession and joint venture are . . .
alternative theories with which to connect an accused to the crime,"
Commonwealth v. Robinson, 43 Mass. App. Ct. 257 , 261 (1997), we examine
separately the application of these theories.

While there is support for an inference that the defendants ran from
the area where gunshots were heard, that one or more of them had fired
the .25 caliber handgun, and that they sought to conceal themselves from
the police, they were not tried for any direct participation in the
shooting. They were charged solely with unlawfully possessing guns and
ammunition, and the Commonwealth treated the charges as presenting "a
straight possession case." These are not crimes with additional
elements, as for example, discharging a firearm within 500 feet of a
dwelling in use (see G.L.c. 269, § 12E). "There is no question that
one may be found guilty as an accessory to a crime that involves
possession as an element. . . . To convict on a theory of accessorial
responsibility, it is not necessary to show that the defendant himself
possessed the [contraband], either actually or constructively, . . . but
it is frequently said that it is necessary to show that the defendant
aided in the possession and in each other element of the substantive
offense." Commonwealth v. James, 30 Mass. App. Ct. 490 , 498-499 (1991)
(citations omitted). "To establish liability under th[e] theory [of
joint venture], . . . it would not be necessary to prove that [a]
defendant had possession  actual or constructive," Commonwealth v.
Pichardo, 38 Mass. App. Ct. 416 , 416 n. 1 (1995), but only that an
identified defendant was accessory to another identified defendant in
possessing a firearm. Here, there is no evidence that any specific
defendant aided another defendant in firing, or gaining or maintaining
possession of, the guns and thus no identified defendant can be linked as
a joint venturer to possessing a specific weapon. [Note 5] Also, because
there is no element other than possession in the substantive offenses
charged,

Page 257

the defendants cannot be seen as jointly aiding each other in a further
criminal enterprise involving possession. Compare Commonwealth v.
Carmenatty, 37 Mass. App. Ct. 908 (1994); Commonwealth v. Sadberry, 44 Mass. App. Ct. 934 , 936 (1998). We conclude that a joint venture
theory was inapplicable and should not have been submitted to the jury.
The issue was preserved by the defendants' motions for required findings
of not guilty. See Commonwealth v. Sanchez, 40 Mass. App. Ct. 411 , 419
(1996). This case is analogous to Commonwealth v. Deagle, 10 Mass. App. Ct. 563 , 566 (1980), where the defendant was charged with
conspiracy to possess with intent to sell an illegal substance. There we
observed that, "as independent evidence of an agreement is lacking, that
is to say, as the train of logic is that the existence of a conspiracy is
to be inferred, if at all, from the fact of doing the very thing which is
the object of the alleged conspiracy, it follows that a conspiracy is not
made out unless the act, in this case possession, is itself made out."

Accordingly, we examine the evidence to determine whether it was
sufficient to sustain the alternative theory of possession. See
Commonwealth v. Latimore, 378 Mass. 671 , 677-678 (1979). As to actual
possession, there was no direct evidence, such as by observation,
fingerprints or paraffin tests, [Note 6] that any identified defendant
actually possessed any of the three weapons. However, "[p]ossession need
not be exclusive. It may be joint and constructive, and it may be proved
by circumstantial evidence." Commonwealth v. Beverly, 389 Mass. 866 , 870
(1983). "Possession may often be inferred from proximity conjoined with
knowledge; but the reasonableness of such an inference depends upon the
circumstances." Commonwealth v. Deagle, supra at 567- 568. See
Commonwealth v. Fernandez, 48 Mass. App. Ct. 530 , 532 (2000). Because
there is no evidence specifically identifying the two men observed near
the area of the shed and the dumpster where the .25 caliber handgun and
the shotgun were found, proof of actual or constructive possession of
these two weapons by any individual defendant is lacking. The logical
inference that two of the three defendants may each have possessed a gun
is not a substitute for proof

Page 258

beyond a reasonable doubt that an identified defendant possessed a specific
gun. Similarly, a probability that one of the defendants fired the .25
caliber handgun is insufficient to implicate any specific defendant or to
convict the others of joint and constructive possession. As juries long
have been instructed, "it is not sufficient to establish a probability,
though a strong one arising from the doctrine of chances, that the fact
charged is more likely to be true than the contrary; but the evidence must
establish the truth of the fact to a reasonable and moral certainty."
Commonwealth v. Webster, 5 Cush. 295 , 320 (1850).

We also conclude that the evidence is insufficient to sustain the
charge that the defendants jointly and constructively possessed the 9
millimeter handgun found under the couch. It was not in plain view, and
was discovered only after the couch on which two of the defendants were
sitting was lifted from the floor by the police. That couch sat low to
the floor on legs only an inch or two high, and the police saw nothing
under it until it was lifted. Although all the defendants were in close
proximity to the gun, the police observed no suspicious movements on
their part in relation to it. Moreover, while two of the men earlier
were observed running as if "hugging themselves," perhaps indicating they
were carrying firearms, the third was seen running with his hands down.
Lastly, the gun was loaded when it was found under the couch, and the
spent shells found on the street were of a different caliber. On this
state of the evidence, an inference that the 9 millimeter gun was in the
apartment before the three defendants arrived, and that they had no
knowledge of it, is at least as reasonable as an inference of recent
possession. Compare Commonwealth v. Fancy, 349 Mass. 196 , 200 (1965)
("When the evidence tends equally to sustain either of two inconsistent
propositions, neither of them can be said to have been established by
legitimate proof"). [Note 7]

Accordingly, because the joint venture theory was inapplicable and in
any event failed of proof as to any charged crime,

Page 259

and the evidence was insufficient as to actual or constructive possession
by any identified defendant of any of the guns and ammunition found by
the police, the motions of the defendants for required findings of not
guilty should have been allowed. [Note 8]

[Note 2] The complaints against the defendants originally contained nine

counts charging various crimes, including breaking and entering, armed
assault in a dwelling, and drug offenses. Before the jury were
empaneled, the complaints were amended twice, partly in order to permit
the District Court to retain jurisdiction. At the conclusion of the
Commonwealth's case, the judge allowed in part the defendants' motions
for required findings, and directed the clerk to prepare an amended
complaint containing just four charges. Ultimately, the jury rendered
guilty verdicts on all four charges: possession of a firearm without a
license, G.L.c. 269, § 10(a); possession of ammunition without a
firearm identification card, G.L.c. 269, § 10(h); possession of a
shotgun without a license, G.L.c. 269, § 10(a); and possessing a
firearm within 500 feet of a dwelling, G.L.c. 131, § 58.

challenged at trial, and the caller modified them in her testimony. In
the telephone call she reported that there were "three black males firing
a gun in the parking lot." She later testified that she heard gunshots,
then went to her window and saw the three black males running. She
acknowledged that she had not seen anyone with guns and that she had not
seen any of the three men discharge a weapon or fire guns in the air.

In her call she stated that the three men "had hoodies on." She later
testified that she saw "[a]t least one, possibly two" with hoods.

the defendants. His motion for required findings of not guilty on
all the charges was allowed by the trial judge at the close of all
the evidence.

[Note 5] As the defendant Brown argues, "it is hard to conceive that there

could be many circumstances which could support an inference of a joint
venture where the highest element of the offense charged is simple
possession, and where the element of possession is not the predicate for
further criminal activity, e.g., possession with intent to
distribute."

[Note 6] Although there was evidence the .25 caliber handgun had been fired,

no paraffin tests for gunpowder residue were performed on the defendants'
hands or clothing.

[Note 7] Nor is the Commonwealth aided by its reliance on a consciousness of

guilt theory. Even if the conduct of the two men near the dumpster and
the shed gives rise to an inference of possession through the concealing
of the firearms found there, there is no identification of which two of
the three defendants were involved. With respect to the 9 millimeter
handgun found in the apartment, even if we assume the defendants were
hiding from the police in the darkened living room, there is no evidence
to support an inference that they placed the gun there or knew of its
presence. Mere proximate presence does not support such an inference.
See Commonwealth v. Brown, 34 Mass. App. Ct. 222 , 226-227 (1993).
Contrast Commonwealth v. Brzezinski, 405 Mass. 401 , 409-410 (1989).

[Note 8] Because of our decision, we need not address other issues raised by